JOHN E. DENARDO and JEANNE L. DENARDO v. CHANDLER BOSWORTH, et al.

MISC 06-324036

August 12, 2015

Barnstable, ss.

DECISION

In 1925, a plan entitled Scorton Dunes East Sandwich Mass. Belonging to Homestead Trust  S.D. Hannah Trustee Buzzard Bay Mass. Scale: 1 in. = 100 ft. Aug  1925 (the Scorton Dunes Plan) was recorded in the Barnstable Registry of Deeds (registry) at Plan Book 14, Page 147. The Scorton Dunes Plan shows a parcel of land in Sandwich along Cape Cod Bay, divided into lots and ways. One of those ways leads to Cape Cod Bay and is named Beach Way. John E. Denardo and Jeanne L. Denardo own a lot along Beach Way and the beach at Cape Cod Bay which was formerly part of lots 1 and 2 on the Scorton Dunes Plan, and Thomas DeLoughrey owns a lot along Beach Way which formerly formed the bulk of the remainder of lots 1 and 2. Joanne Eudy and Dan Eudy own a lot on the other side of Beach Way, consisting mostly of the former lot 8 on the Scorton Dunes Plan. Catherine Johnson owns lots 32 and 33 as shown on the Scorton Dunes Plan. Gabriele N. Sullivan and Derek Sullivan owned lot 36 on the Scorton Dunes Plan; they have subdivided that lot and conveyed one of the subdivided lots to Jennifer Kirk. Johnson and the Sullivans claim that they have the right to pass over and park on Beach Way and to use the beach in front of the Denardos property. The Denardos, the Eudys, and DeLoughrey claim that they own the entire fee in Beach Way where it abuts their properties and that Johnson and the Sullivans have no right to use Beach Way or the beach. On the parties cross-motions for partial summary judgment in these consolidated cases, I found that Johnson and the Sullivans have the right to use Beach Way, in common with others for all purposes for which ways in the Town of Sandwich are used, along the portion of Beach Way abutting the properties owned by DeLoughrey and the Denardos, including the right to use the portion of the beach on Cape Cod Bay that is within the layout of Beach Way. Issues of fact remained as to (a) what rights, if any, Johnson and the Sullivans have to use the portion of Beach Way owned by the Eudys, (b) what rights, if any, they have to park on Beach Way, and (c) whether and to what extent they have rights under the so-called Ladenburg Restrictions and Easements. The parties have submitted these issues as a case stated. Based on the exhibits in the record and the view, I now find that Johnson and the Sullivans do not have a record easement to use the portion of Beach Way owned by the Eudys, but do have an implied easement, including an easement by common scheme, to use that portion of Beach Way; that Beach Way is not in a rural or sparsely settled district as defined in the Town of Sandwich Traffic Rules and Orders; and that the Ladenburg Restrictions and Easements grant them no right to use the beach. After submission of requests for default judgment and proposed forms of judgment, final judgment shall enter on these and all other claims in these consolidated cases.

Procedural Background

I incorporate into this decision the procedural history set forth in the Memorandum and Order on Cross-Motions for Partial Summary Judgment (Summary Judgment Order) issued July 11, 2012. See Denardo v. Bosworth, 20 LCR 344 , 345-347 (2012). The Motion of John E. Denardo, Jeanne L. Denardo, Thomas DeLoughrey, Joanne Eudy and Dan Eudy to Require Joinder of Marian E. McLoughlin Pursuant to M.R. Civ. P. 19 was allowed on September 5, 2012. The same day, Plaintiffs DeLoughrey and Eudys Motion for Summary Judgment Regarding the Deeded Rights of McLoughlin was allowed and the Defendant James McLoughlins Motion for Judgment of Dismissal was denied.

A pretrial conference was held on September 9, 2013. A view of the properties was taken on October 11, 2013. Plaintiffs Joint Motion to Add a Necessary Party was allowed on December 3, 2013, and Jennifer Kirk was joined as a defendant in these actions pursuant to Mass. R. Civ. P. 19(a)(1) and 19(a)(2)(ii). Pursuant to the courts order of April 18, 2014, the Plaintiffs Fourth Amended Complaint in 07 MISC 346353 was filed, adding Jennifer Kirk as a defendant. Telephone case management conferences were held on June 17, 2014 and July 10, 2014. A second pre-trial conference was held on August 5, 2014. Defendant Jennifer Kirks Motion to Be Deemed Bound by the Judgment and Relief from Participating in Trial was filed on August 21, 2014, and the Order on Motion to Be Deemed Bound by the Judgment and Relief from Participating in Trial, allowing the motion, was entered on September 10, 2014. At the telephone status conference on September 19, 2014, the parties agreed to have the cases tried as a case stated, with the view previously taken by the court as part of the record.

The Case Stated Trial Brief of Plaintiffs/Counterclaim Defendants Thomas DeLoughrey, Joanne Eudy and Dan Eudy and the Stipulated Exhibits 1-78 were filed on November 25, 2014. The Trial Memorandum Submitted on Behalf of John E. Denardo and Jeanne L. Denardo, the Proposed Findings and Rulings Submitted on Behalf of John E. Denardo and Jeanne L. Denardo, the Trial Brief of Defendants Gabriele N. Sullivan, Derek D. Sullivan and Catherine Johnson, and the Requested Findings of Fact and Rulings of Law Submitted by the Sullivans and Johnson Defendants were all filed on November 26, 2014. A Trial Memorandum on behalf of the Denardos and the Defendant's Trial Brief were filed on November 26, 2014. Closing arguments were held on December 5, 2014, at which defendants Johnson and Sullivans waived their claim for prescriptive easement. The matter was taken under advisement as a case stated, and this Decision follows.

Factual Background

Based on the Stipulated Exhibits (hereinafter Exh.), including the stated facts of Stipulated Exhibit 1, and the view, I find the following facts:

As discussed above, in 1925, the Scorton Dunes Plan was recorded in the registry at Plan Book 14, Page 147. Exh. 7. It was re-recorded in the registry at Plan Book 35, Page 73. Exh. 8. A revised version of the Scorton Dunes Plan, showing the parcels owned by the remaining parties to this action, is attached. The Denardos own the parcel shown as Denardo on the revised Scorton Dunes Plan, by a deed from Ibis Kramer dated August 23, 1984 and recorded in the registry at Book 4234, Page 337 on August 31, 1984 (the Denardo Property). Exh. 50. The Denardo Property consists of a single-family residence and is known and numbered as 14 Beach Way, Sandwich. Exh. 1. DeLoughrey owns and resides at the parcel shown as DeLoughrey on the revised Scorton Dunes Plan, by a deed from Ronald Wilson and Judith Ann Avnet dated and recorded in the registry at Book 12972, Page 294 on April 27, 2000 (the DeLoughrey Property). Exhs. 1, 59. The DeLoughrey Property consists of a single-family home and is known and numbered as 10 Beach Way, Sandwich. Exh. 1. The Eudys own and reside at the parcel shown as Eudy on the revised Scorton Dunes Plan, consisting of lot 8 on that plan (or lot 10 as shown on the 1974 Ladenburg Plan, see infra), by a deed from the Stewart Family Limited Partnership dated and recorded in the registry at Book 13373, Page 031 on November 17, 2000 (the Eudy Property). Exhs. 1, 61. The Eudy Property consists of a single-family home and is known and numbered as 9 Beach Way, Sandwich. Exh. 1. Beach Way is a private way. As shown on the Scorton Dunes Plan, it extends to Cape Cod Bay after passing over a dune. Exhs. 1, 7; View. DeLoughrey, the Denardos, and the Eudys own substantially all the fee in Beach Way from Cape Cod Bay to its intersection with Maple Place. Exh. 1.

The Sullivans took title to the parcel consisting of lot 36 on the Scorton Dunes plan, by a deed from Gabriele N. Sullivan to Derek D. Sullivan and Gabriele N. Sullivan as joint tenants dated and recorded in the registry at Book 15327, Page 1 on July 1, 2002. Exh. 64. Lot 36 was divided into lots 1, 2, and 3 as shown on a plan entitled Plan of Land Cranberry Trail in Sandwich Massachusetts Date: June 29, 2004, endorsed as Planning Board approval under the Subdivision Control Law not required on June 29, 2004 and recorded in the registry at Plan Book 592, Page 20 on June 30, 2009 (the Sullivan Plan). Exh. 66. Gabrielle [sic] Sullivan and
Derek Sullivan conveyed an undivided ½ interest in lot 2 of that plan to Derek D. Sullivan and an undivided ½ interest in lot 2 to Gabrielle [sic] N. Sullivan and David D. Sullivan, husband and wife as tenants by the entirety, all as joint tenants, by a deed dated July 6, 2009 and recorded in the registry at Book 23871, Page 335 on July 8, 2009. Exh. 70. On August 15, 2013, Gabriele N. Sullivan conveyed Lot 1 on the Sullivan Plan to Jennifer E. Kirk, by a deed dated August 15, 2013 and recorded in the registry on August 19, 2013 at Book 27631, Page 222. Exh. 72. The property owned by the Sullivans and the property conveyed to Kirk are shown together as Sullivan on the revised Scorton Dunes Plan and referred to together herein the Sullivan Property. The portion of the Sullivan Property owned by the Sullivans consists of a single- family home and is known and numbered as 38 Cranberry Trail, Sandwich. The Sullivan Property does not abut Beach Way. Exh. 1.

Johnson owns the parcel shown as Johnson on the revised Scorton Dunes Plan, consisting of lots 32 and 33 on that plan, by a deed from Julie C. Molloy, trustee under the will of Junia Curtin, to Van Johnson and Catherine Johnson dated April 11, 2003 and recorded in the registry at Book 16745, Page 283 on April 14, 2003 (the Johnson Property). Exh. 65. Van Johnson died on September 17, 2007; his death certificate was recorded in the registry at Book 22728, Page 123 on March 5, 2008. Exh. 69. The Johnson Property consists of a single-family home and is known and numbered as 53 Cranberry Trail, Sandwich. The Sullivan Property does not abut Beach Way. Exh. 1.

The DeLoughrey, Denardo, Eudy, Sullivan, and Johnson Properties are part of the approximately 53.4 acre parcel of land on Scorton Neck in Sandwich abutting Cape Cod Bay that is shown on the Scorton Dunes Plan. Exh. 1. That parcel, originally consisting of two parcels of 29.59 and 23.83 acres, was conveyed from John F. Carleton, Isabel F. Carleton, Annie E. Foxcroft, and Francis A. Foxcroft to Samuel D. Hannah and Henry K. Hannah, trustees of the Homestead Trust (the Homestead Trust) by a deed dated January 11, 1916 and recorded in the registry at Book 337, Page 598 on January 17, 1916 (the Carleton Deed). Exhs. 1, 2. The Carleton Deed describes the parcel by metes and bounds. The Carleton Deed grants to the Homestead Trust a right of way, in common with the grantors and others, over the land to the south to and from the State Highway. Exhs. 1, 2.

The conveyed land is also shown on a plan entitled Plan Showing Land of the Homestead Trust Cape Cod Bay, East Sandwich formerly owned by John F. Carleton & Others Scale 1  100 Jan. 1916 Barry and Gurney Civil Engrs Buzzards Bay, Mass., recorded in the registry more or less contemporaneously with the Carleton Deed at Plan Book 4, No. 7 (the 1916 Barry & Gurney Plan). Exh. 3. The 1916 Barry & Gurney Plan is referenced in the Carleton Deed. Exhs. 1, 2. It shows the same parcel as the Scorton Dunes Plan, but without the ways or lots that are delineated on the latter plan. Exhs. 3, 7. A plan entitled Plan showing Location of Road in East Sandwich, Mass. for the Homestead Trust John P. B. Ellis Sept. 1, 1918 Bourne, Mass. Scale: 1 in. = 100 ft. was recorded in the registry at Plan Book 9, No. 43 (the 1921 Detail Plan). Exh. 4. The 1921 Detail Plan shows lots 1, 2, and 3 as they will appear on the 1925 Scorton Dunes Plan as well as a section of ways called Carleton Place and Maple Road, and a way extending to Cape Cod Bay. The 1921 Detail Plan contains the following: Note: Lots No. 1  2  3 Maple Road and Carleton Place added to plan in 1921. Exhs. 1, 4, 7.

The Homestead Trust conveyed a parcel of its property to Gertrude E. Cornish by a deed dated July 25, 1921 and recorded in the registry at Book 382, Page 76 on August 8, 1921 (the Cornish Deed). Exh. 5. The conveyed parcel is shown as lot 3 on the 1921 Detail Plan and the Scorton Dunes Plan. Exhs. 4, 5, 7. The Cornish Deed recites that lot 3 is conveyed [t]ogether with a right of way over the existing road to the State Highway. Also with a right to use the beach shown on [the 1916 Barry & Gurney Plan] in common with others. Reserving to the grantor, his successor and assigns a right to use the beach in front of the herein conveyed premises. Exh. 5.

The Homestead Trust conveyed a parcel of its property to Cyrus W. Jones by a deed dated September 19, 1923 and recorded in the registry at Book 399, Page 378 on October 10, 1923. Exh. 6. The conveyed parcel is shown as lot 7 on the Scorton Dunes Plan, and was conveyed with a Right of Way for all purposes, over said Carleton road, southwesterly and southerly to the State Highway, to be exercised in common with all others who have a legal right thereto. Exhs. 6, 7.

The Scorton Dunes Plan was recorded in 1925. Exh. 7. It subdivides the property into lots 1-38 and the ways that exist today and that are at issue in this case. Exh. 7. The Scorton Dunes Plan names Carleton Road, Oak Place, Maple Place, and Beach Way. Exh. 7. Those ways and lots 1, 2, and 3 are consistent with the ways and lots shown on the 1921 Detail Plan, although Beach Way is named for the first time in the Scorton Dunes Plan. Exhs. 1, 4, 7. Beach Way runs from an intersection with Carleton Road and Oak Place, at the western corner of the triangular Park shown on the plan, along lots 12, 11, 10, 9, 8, 2, and 1 to Cape Cod Bay. Exhs. 1, 7. Lot 3 is shown as belonging to Cornish and lot 7 as belonging to Jones. Exhs. 1, 7.

Between 1926 and 1936, the Homestead Trust conveyed lots 4, 5, 6, 10, and 16 to various grantees. Exhs. 9-12. No rights or easements in the ways shown on the Scorton Dunes Plans were granted or reserved in the deeds for these conveyances. Exhs. 9-12. By a deed dated September 13, 1937 and recorded in the registry at Book 568, Page 267 on July 24, 1940, the Homestead Trust conveyed lots 31 and 34 on the Scorton Dunes Plan (the lots now owned by defendant McLoughlin) to the Trustees of Union Chapel Christian Church. Exh. 13. This deed provided: There is conveyed herewith a right of way in common with all others who have a legal right thereto, over the Carlton [sic] Road shown on [the Scorton Dunes Plan], to a public road; and over said Carleton Road and Beach Way, shown on said plan, to Cape Cod Bay. Exh. 13.

A plan entitled Plan of Lot 3, Scorton Dunes, Sandwich. Scale: 1 = 100 Dec. 15, 1958 Newell B. Snow, R.L.S. Buzzards Bay, Mass. was endorsed as approval under the subdivision control law is not required on December 26, 1958 and was recorded in the registry at Plan Book 146, Page 39 on February 16, 1959 (the 1958 Plan). Exh. 14. The 1958 Plan shows lots 1 through 6 on the Scorton Dunes Plan, along with Beach Way, Maple Place, and the triangular Park. Exh. 14. It also shows a section of Carleton Road. Exh. 14. The 1958 Plan names this section of road Cranberry Trail formerly Carleton Road. Exh. 14.

In 1962, Junia H. Curtin became the sole trustee of the Homestead Trust. In 1963, after a tax taking, Curtin personally acquired lot 10 as shown on the Scorton Dunes Plan. Exh. 1.

On November 23, 1968, Curtin, as sole trustee of Homestead Trust, conveyed to Richard L. Ladenburg all the remaining lots held by the Homestead Trust along with the lot held by her individually as follows. By a deed dated November 23, 1968 and recorded in the registry at Book 1420, Page 746 on November 26, 1968, Curtin as trustee of the Homestead Trust conveyed to Ladenburg lots 1, 2, 8 through 15, 17 through 29, 32, 33, and 35 through 38 as shown on the Scorton Dunes Plan, along with whatever interest the Grantor has as such Trustee in Lot 30 and whatever interest the Grantor now has or will have as such Trustee in Lots 31 and 34. Exh. 15. The deed conveyed the lots together with the right to use all ways shown on [the Scorton Dunes Plan] for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto. Exh. 15. The deed also provided the conveyance was [s]ubject to and with the benefit of all easements, restrictions and encumbrances of record. Exh. 15. By a second deed also dated November 23, 1968 and recorded in the registry at Book 1420, Page 748 on November 26, 1968, Curtin, individually, conveyed lot 10 to Ladenburg, together with the right to use all ways on [the Scorton Dunes Plan] for all purposes for which ways are commonly used. Exh. 16. Said right to be exercised in common with all others lawfully entitled thereto. Subject to and with the benefit of all easements, restrictions and encumbrances of record. Exh. 16. These two deeds will be referred to collectively as the 1968 Curtin Deeds. Exhs. 15, 16.

By a deed dated December 24, 1973 and recorded in the registry at Book 1985, page 129 on December 31, 1973, Ladenburg conveyed to Curtin, individually, lots 9, 10, 17, 18, 21, and 22 as shown on the Scorton Dunes Plan, together with the right to use all ways shown on said plan for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto. Exhs. 1, 17.

By a deed dated and recorded in the registry at Book 2047, page 258 on May 31, 1974, Ladenburg conveyed to Helen A. Ladenburg lots 13, 14, and 15 as shown on the Scorton Dunes Plan, together with the right to use all ways shown on said plan for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto. Exh. 18.

By a deed dated July 5, 1974 and recorded in the registry at Book 2081, page 219 on August 9, 1974, Ladenburg conveyed to Lisa Anne Ladenburg lots 35 and 37 as shown on the Scorton Dunes Plan (the Ladenburg Deed). Exh. 19. The Ladenburg Deed recites that the conveyance is [s]ubject to and with the benefit of all easements, restrictions and encumbrances of record if any there be. Exh. 19. It further recites: There is appurtenant to said lot [sic] the right to use the ways as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. Exh. 19.

Recorded in the registry with the Ladenburg Deed, at Book 2081, Page 220, is an instrument entitled Restrictions and Easements for Subdivision of Land in Sandwich, Mass., Owned By Richard L. Ladenburg (the Ladenburg Restrictions and Easements). Exhs. 1, 20. The Ladenburg Restrictions and Easements are unsigned. Exh. 20. In the margin is a reference to the Scorton Dunes Plan. Exh. 20. The recording date of August 9, 1974 is stamped on the last page of the Ladenburg Restrictions and Easements; no recording date is stamped anywhere on the Ladenburg Deed. Exhs. 1, 19, 20. The Ladenburg Restrictions and Easements provide that [a]ll lots as shown on the plan of the subdivision above mentioned shall be used for residential purposes; that no structure can be built without the approval of Ladenburg or his successors and assigns; that no construction can take place in July and August; that no livestock, animals or poultry can be kept on the lots; and that no business, trade or manufacturing activity can be conducted on the lots. Exh. 20. In addition to these restrictions, the Ladenburg Restrictions and Easements provide, in relevant part, as follows:

5. All lot owners in the said subdivision as shown on the plan thereof, shall share a right of way over Cranberry Trail to the beach. The use of the beach by all the said lot owners shall be restricted to that area of the beach lying in front of lots 1 and 2 on said plan, and between the low water mark and the place where the bottom of the beach bank slope meets the beach.

6. Said premises are conveyed together with a right of way over the ways as shown on said plan for all purposes for which ways may be used in the Town of Sandwich, provided, however:

(a) the grantor reserves for himself and his successors and assigns, as appurtenant to all of the remaining land of the grantor the right to use said ways in common with the grantees and others entitled to use the same, for all purposes for which streets may now or hereafter customarily be used in said Sandwich.

(b) the grantor reserves for himself and his successors and assigns (1) the right from time to time to grant to any other person or persons the right to use said ways, in common with the grantees and others from time to time entitled to use the same, for all purposes for which streets may now or hereafter customarily be used in said Sandwich, . . .  provided, however, that the rights reserved to the grantor and his successors and assigns under this sub-paragraph (b) shall be exercisable only by the grantor and others to whom said rights may be specifically assigned . . . .

Exh. 20.

By two deeds, each dated August 26, 1974 and recorded serially in the registry at Book 2088, Pages 345 and 346 on August 27, 1974, Ladenburg conveyed the remainder of the lots he held to Curtin. Exhs. 21, 22. These were lots 1, 2, 8, 11, 12, 19, 20, 23 through 30, 32, 33, 36, and 38 as shown on the Scorton Dunes Plan (he had conveyed lots 9, 10, 17, 18, 21, and 22 to Curtin in the December 1973 deed referenced above). Exhs. 21, 22. Lots 1 and 2 are what are now the DeLoughrey and Denardo Properties. Exh. 1. Lot 8 is, more or less, the Eudy Property. Exh. 1. Lots 32 and 33 are the Johnson Property, and lot 36 is the Sullivan Property. Exh. 1. Each deed provided: There is appurtenant to said lots the right to use the ways as shown on said plan in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. Exhs. 21, 22. The conveyance was subject to and with the benefit of easements, encumbrances, and restrictions of record. These two deeds will be referred to collectively as the 1974 Ladenburg-Curtin Deeds. Exhs. 21, 22.

The same day, Curtin gave a mortgage to Ladenburg, recorded in the registry at Book 2088, Page 347, encumbering lots 1, 2, 8, 11, 12, 19, 20, 29, 30, 32, 33, 36 and 38, and also reciting: There is appurtenant to said lots the right to use the ways as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. Exh. 23. A discharge of the mortgage, dated February 21, 1975, was recorded in the registry at Book 2154, Page 160 on February 25, 1975. Exh. 27.

On November 25, 1974, Ladenburg executed and recorded in the registry two deeds one at Book 2124, Page 018 and one at Page 019. Exhs. 24, 25. The Page 018 deed conveyed lots 23-28 to Curtin, and the Page 019 deed conveyed lots 1, 2, 8, 11, 12, 19, 20, 29, 30, 32, 33, 36 and 38 to Curtin. Exhs. 24, 25. Each deed states that it is to confirm a prior deed dated August 26, 1974 from Richard Ladenburg to Junia H. Curtin wherein the middle initial of Richard Ladenburg was inadvertently omitted, referring to the 1974 Ladenburg-Curtin Deeds. Exhs. 24, 25. Each deed repeats the reference to the right to use the ways on the Scorton Dunes Plan with others legally entitled thereto and that it is subject to and with the benefit of easements, encumbrances, and restrictions of record. Exhs. 24, 25. Each adds the following: Subject also to restrictions recorded with said Deeds in Book 2081, Page 220. This is a reference to the Ladenburg Restrictions and Easements. Exh. 20. These deeds will be referred to collectively as the 1974 Confirmatory Ladenburg-Curtin Deeds.

A plan entitled Plan of Land in East Sandwich, Mass. for Richard Ladenburg Scale 1 = 100 Date: March 23, 1972 Charles N. Savery, Inc. Registered Engineers & Land Surveyors was endorsed by the Sandwich Planning Board as approval not required on December 24, 1974 and recorded in the registry at Plan Book 290, Page 94 on December 26, 1974 (the 1974 Ladenburg Plan). Exh. 26. The 1974 Ladenburg Plan has a NOTE that states: THIS PLAN BASED ON PLAN FOR HOMESTEAD TRUST DATED JANUARY, 1967 BY MERCER ENG. CORP. AND [the Scorton Dunes Plan]. Exh. 26. The 1974 Ladenburg Plan reconfigured lots 1, 2, and 8 through 28 as shown on the Scorton Dunes Plan. Exhs. 7, 26. Lots 1 and 2 were combined to form a lot 7 (which would ultimately be divided again to form the Denardo and DeLoughrey Properties), and lots 8 through 12 (including the Eudy Property) were renumbered as lots 8, 9, and 10 (the Eudy Property is lot 10). Exhs. 7, 26. The Plan names the ways as Oak Place, Maple Place, Beach Way, and Cranberry Trail (formerly Carleton Road), and appears to show Cranberry Trail as splitting at the Park and extending to either side of Maple Place, with Beach Way beginning somewhere along the renumbered lot 10. Exh. 26.

At the time of the recording of the 1974 Ladenburg Plan, Curtin owned the lots shown as lots 1, 2, 8 through 12, and 17 through 28 on the Scorton Dunes Plan (lots 2 through 10 on the 1974 Ladenburg Plan), and lots 29, 30, 32, 33, 36, and 38 as shown on the Scorton Dunes Plan. Exhs. 7, 17, 21, 22, 24-26. Thus, at that time, among the lots owned by Curtin were the lots that would become the Eudy, DeLoughrey, Denardo, Sullivan, and Johnson Properties. Exhs. 7, 17, 21, 22, 24-26. Curtins lots continued to be conveyed after the recording of the 1974 Ladenburg Plan. Exh. 1. In most of those conveyances, the deeds recited that the lots were conveyed with the right to use the ways as shown on the Scorton Dunes Plan or the 1974 Ladenburg Plan in common with all others legally entitled thereto, or similar language to the same effect. The Eudy, DeLoughrey, Denardo, Sullivan, and Johnson Properties were conveyed as follows. Exh. 1.

The Eudy Property. By a deed dated July 8, 1978 and recorded in the registry at Book 2758, Page 129 on August 1, 1978 (the Curtin-Stewart deed), Curtin conveyed the Eudy Property (lot 8 on the Scorton Dunes Plan and lot 10 on the 1974 Ladenburg Plan) to William Stewart and Mary Ellen Stewart. The deed referred to the 1974 Ladenburg Plan. Exh. 30. It states: There is appurtenant to said lot the right to use the ways as shown on [the 1974 Ladenburg Plan] for all purposes for which ways are commonly used in the Town of Sandwich. There is appurtenant to said lot the right to use that area of the beach lying in front of Lot 7, as shown on [the 1974 Ladenburg Plan], between the low water mark and the place where the bottom of the beach bank slope meets the beach. Exh. 30. The deed further provides that the conveyed lot is subject to restrictions recorded at said Registry of Deeds in Book 2081, Page 220, a reference to the Ladenburg Restrictions and Easements. Finally, the following paragraph appears on the deed but is crossed out:

The grantor reserves the right to grant as appurtenant to not more than fifty (50) of her lots, nine (9) of which are shown on the [1974 Ladenburg Plan], the right to use the ways as shown on said plan for all purposes for which ways are used in the Town of Sandwich, and the right to use that area of the beach lying in front of Lot 7, as shown on said plan, between the low water mark and the place where the bottom of the beach bank slope meets the beach. Exh. 30.

Exh. 30.

As discussed above, by a deed dated and recorded in the registry at Book 13373, Page 031 on November 17, 2000, the Stewart Family Limited Partnership conveyed lot 10 as shown on the 1974 Ladenburg Plan, the Eudy Property, to Dan R. Eudy and Joanne L. Eudy. Exh. 61. The deed recites: Said premises are conveyed subject to and with the benefit of all rights, restrictions, reservations, easements, appurtenances and rights of way of record, insofar as the same are still in force and applicable. Exh. 61.

The DeLoughrey and Denardo Properties. By a deed dated and recorded in the registry at Book 3229, Page 315 on January 23, 1981, the administrators of the estate of Junia Curtin (the Curtin Estate) conveyed lots 1 and 2 as shown on the Scorton Dunes Plan (which included what would become the DeLoughrey and Denardo Properties) to Paul A. Kramer. Exh. 37. For each of the lots, the deed recites that the lot is [s]ubject to and with the benefit of all easements, restrictions and encumbrances of record and at law, if any there be, and that [t]here is appurtenant to said lot the right to use the ways and beaches as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways and beaches are commonly used in the Town of Sandwich. Exh. 37.

A plan entitled Plan of Land in Sandwich, Mass. Scale: 1 Inch = 40 Feet January 9, 1981 C-898 Cape Cod Survey Consultants a Division of Boston Survey Consultants, Inc. 76 Enterprise Road Hyannis, Mass. Owner: Paul Kramer (the 1st 1981 Kramer Plan) was endorsed by the Sandwich Planning Board as approval not required on February 6, 1981 and recorded in the registry at Plan Book 349, Page 64 on February 11, 1981. Exh. 38. The 1st 1981 Kramer Plan divides lots 1 and 2 as shown on the Scorton Dunes Plan (lot 7 on the 1974 Ladenburg Plan) into new lots 1 and 2, each of which has frontage on Beach Way. Exh. 38. The 1st 1981 Kramer Plan shows not only the layout of Beach Way, but also the location of the actual way within the layout, marked as Dirt Road (PRIVATE). Exh. 38. A plan dated December 21, 1981, entitled Plan of Land in Sandwich, Mass. Prepared for Paul Kramer (the 2nd 1981 Kramer Plan) was endorsed by the Sandwich Planning Board as approval not required on January 6, 1982 and recorded in the registry at Plan Book 360, Page 37 on January 7, 1982. Exh. 44. The 2nd 1981 Kramer Plan further divides the new lots 1 and 2 shown on the 1st 1981 Kramer Plan into lots 1A, 1B, 2A, and 2B. [Note 1] Exh. 44. Lot 1A is the DeLoughrey Property, and Lot 2A is the Denardo Property. Exhs. 1, 44. Each of those lots has frontage on Beach Way, which is again shown on the 2nd 1981 Kramer Plan with the location of the actual way within the layout marked as Dirt Road (PRIVATE). Exh. 44.

The DeLoughrey Property. By a deed dated January 28, 1982 and recorded in the registry at Book 3430, Page 268 on February 2, 1982, Paul A. Kramer conveyed lot 1A as shown on the 2nd 1981 Kramer Plan, the DeLoughrey Property, to William P. Fenton and Wha Ja W. Fenton. Exh. 45. The deed recites: The granted premises are conveyed with the right, as appurtenant thereto, to use, in common with all others legally entitled thereto, the beach areas of Lots 2A and 2B as shown on [the 2nd 1981 Kramer Plan] for beach purposes, and to use said Beach Way and all other streets and ways shown on said plan, and all ways and beaches shown on [the Scorton Dunes Plan], for all purposes for which ways, streets and beaches are from time to time used in the Town of Sandwich. Exh. 45.

By a deed dated January 7, 1984 and recorded in the registry at Book 3991, Page 224 on January 19, 1984, William P. Fenton and Wha Ja W. Fenton conveyed lot 1A to Johan Willem Roell. Exh. 48. The deed recites: The above described premises are conveyed subject to and with the benefit of all rights, rights of way, easements, appurtenances, reservations and restrictions of record insofar as the same are in force and applicable. Exh. 48.

A handwritten Certificate of Waiver, executed by Ladenburg and dated October 15, 1987, was recorded in the registry at Book 5976, Page 303 on October 16, 1987. Exh. 55. The Certificate of Waiver recites that Ladenburg waives the restrictions set forth in paragraph 2 of the Ladenburg Restrictions and Easements as they apply to lot 1A of the 2nd 1981 Kramer Plan, the DeLoughrey Property. Exh. 55. Paragraph 2 of the Ladenburg Restrictions and Easements requires Ladenburgs approval of any structure to be built on the lots subject to the Restrictions. Exh. 55. By a deed dated the same day, October 15, 1987, and recorded in the registry at Book 5976, Page 304 on October 16, 1987, Johan Willem Roell conveyed lot 1A to John Namnoum.
Exh. 56. The deed recites: The above described premises are conveyed subject to and with the benefit of all rights, rights of way, easements, appurtenances, reservations and restrictions of record insofar as the same are in force and applicable. Exh. 56.

By a deed dated and recorded in the registry at Book 8044, Page 002 on May 29, 1992, John Namnoum conveyed lot 1A to Ronald Wilson and Judith Ann Avnet. Exh. 58. The deed recites: The above described premises are conveyed subject to and with the benefit of all rights, rights of way, easements, appurtenances, reservations and restrictions of record insofar as the same are in force and applicable. Subject to and together with all rights, easements, restrictions, reservations and encumbrances of record. Exh. 58.

As discussed above, by a deed dated and recorded in the registry at Book 12972, Page 294 on April 27, 2000, Ronald Wilson and Judith Ann Avnet conveyed lot 1A, the DeLoughrey Property, to Thomas J. DeLoughrey and Judith M. DeLoughrey. Exh. 59. The deed contains no recitals regarding easements, restrictions, or rights of way. Exh. 59.

The Denardo Property. By a deed dated February 3, 1982 and recorded in the registry at Book 3471, Page 172 on April 28, 1982, Paul A. Kramer conveyed lot 2A as shown on the 2nd 1981 Kramer Plan, the Denardo Property, to Paul A. Kramer and Ibis C. Kramer. Exh. 46. The deed recites: The granted premises are conveyed with the right, as appurtenant thereto, to use in common with all others legally entitled thereto said Beach Way and all other streets and ways shown on [the 2nd 1981 Kramer Plan], and all ways and beaches shown on [the Scorton Dunes Plan], for all purposes for which ways, streets and beaches are from time to time used in the Town of Sandwich, and also the right as appurtenant thereto to use the beach area of the said Lot 2B for beach purposes only. Exh. 46.

By a deed dated August 23, 1984 and recorded in the registry at Book 4234, Page 337 on August 31, 1984, Ibis C. Kramer conveyed lot 2A, the Denardo Property, to John E. Denardo and Jeanne L. Denardo. Exh. 50. The deed recites: The granted premises are conveyed with the right, as appurtenant thereto, to use in common with all others legally entitled thereto said Beach Way and all other streets and ways shown on [the 2nd 1981 Kramer Plan], and all ways and beaches shown on [the Scorton Dunes Plan], for all purposes for which ways, streets and beaches are from time to time used in the Town of Sandwich, and also the right as appurtenant thereto to use the beach area of the said Lot 2B for beach purposes only. Exh. 50.

The Sullivan Property. By a deed dated and recorded in the registry at Book 4181, Page 143 on July 17, 1984, the Curtin Estate conveyed lot 36 as shown on the Scorton Dunes Plan, the Sullivan Property, to Thomas F. Shanley and Patricia M. Shanley. Exh. 49. The deed recites: Subject to and with the benefit of all easements and encumbrances of record. There is appurtenant to said lot the right to use the ways as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. Exh. 49.

By a deed dated June 29, 2000 and recorded in the registry at Book 13116, Page 222 on July 7, 2000, Thomas F. Shanley and Patricia M. Shanley conveyed lot 36 on the Scorton Dunes Plan, the Sullivan Property, to David D. Sullivan and Gabriele N. Sullivan, husband and wife. Exh. 60. The deed recites: Subject to and with the benefit of all easements and encumbrances of record. There is appurtenant to said lot the right to use the ways as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. Exh. 60.

By a deed dated and recorded in the registry at Book 14398, Page 249 on November 1, 2001, David D. Sullivan and Gabriele N. Sullivan husband and wife, conveyed lot 36 as shown on the Scorton Dunes Plan, the Sullivan Property, to Derek D. Sullivan and Gabriele N. Sullivan as joint tenants. Exh. 62. The deed recites that the property is [s]ubject to and with the benefit of all easements and encumbrances of record, and that, [t]here is appurtenant to said lot the right to use the ways shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. Exh. 62.

By a deed dated June 25, 2002 and recorded in the registry at Book 15304, Page 208 on June 27, 2002, Derek D. Sullivan and Gabriele N. Sullivan conveyed lot 36 as shown on the Scorton Dunes Plan, the Sullivan Property, to Gabriele N. Sullivan. Exh. 63. The deed recites: There is appurtenant to said lot the right to use the ways as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. Exh. 63. The deed further recites: The above premises are conveyed subject to and with the benefit of any and all rights, rights of way, easements, reservations and restrictions of record insofar as the same may be in force and applicable. Exh. 63.

As discussed above, by a deed dated and recorded in the registry at Book 15327, Page 1 on July 1, 2002, Gabriele N. Sullivan conveyed lot 36 on the Scorton Dunes Plan, the Sullivan Property, to Derek D. Sullivan and Gabriele N. Sullivan. Exh. 64. The deed recites: There is appurtenant to said lot the right to use the ways as shown on [the Scorton Dunes Plan] in common with others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. The above premises are conveyed subject to and with the benefit of any and all rights, rights of way, easements, reservations and restrictions of record insofar as the same may be in force and applicable. Exh. 64.

As discussed above, by a deed dated July 6, 2009 and recorded in the registry at Book 23871, Page 335 on July 8, 2009, Derek D. Sullivan and Gabriele N. Sullivan conveyed an undivided ½ interest in lot 2 as shown on the Sullivan Plan, a subdivision of the Sullivan Property, to Derek D. Sullivan and an undivided ½ interest in the same lot 2 on said plan to Gabrielle N. Sullivan and David D. Sullivan, husband and wife as tenants by the entirety, all as joint tenants. Exh. 70. The deed recites: SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE. Exh. 70. Exhibit A is recorded contemporaneously with the deed in the registry at Book 23871, Page 337. Exh. 70. The attached document recites: There is appurtenant to said lot the right to use the ways as shown on [the Sullivan Plan] in common with all others legally entitled thereto for all purposes which ways are commonly used in the Town of Sandwich, and that [t]he above premises are conveyed subject to and with the benefit of any and all rights, rights of way, easements, reservations and restrictions of record insofar as the same may be in force and applicable. Exh. 70.

By a deed dated August 6, 2013 and recorded in the registry at Book 27611, Page 245 on August 9, 2013, Gabriele N. Sullivan a widow, and Derek D. Sullivan a married man, conveyed lot 1 as shown on the Sullivan Plan, a subdivision of the Sullivan Property, to Gabriele N. Sullivan. Exh. 71. The deed recites: SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE. Exh. 71. Exhibit A is recorded contemporaneously with the deed in the registry at Book 27611, Page 247. Exh. 71. The attached document recites: There is appurtenant to said lot the right to use the ways as shown on [the Sullivan Plan] in common with all others legally entitled thereto for all purposes which ways are commonly used in the Town of Sandwich. Exh. 71. The document further recites that the property is conveyed [s]ubject to and the benefit of any and all easements, restrictions of record in so far as same may be in force and applicable. Exh 71.

As discussed above, by a deed dated August 15, 2013 and recorded in the registry at Book 27631, Page 222 Gabriele N. Sullivan conveyed lot 1 as shown on the Sullivan Plan, a subdivision of the Sullivan Property, to Jennifer E. Kirk. Exh. 72. The deed recites: SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE. Exh. 72. Exhibit A is recorded contemporaneously with the deed in the registry at Book 27631, Page 224. Exh. 72. The attached document recites: There is appurtenant to said lot the right to use the ways as shown on [the Sullivan Plan] in common with all others legally entitled thereto for all purposes which ways are commonly used in the Town of Sandwich. Exh. 72. The document further recites that the property is conveyed [s]ubject to and the benefit of any and all easements, restrictions of record in so far as same may be in force and applicable. Exh. 72.

The Johnson Property. By a deed dated November 2, 1988 and recorded in the registry at Book 6507, Page 201 on November 3, 1988, the Curtin Estate conveyed lots 32 and 33 as shown on the Scorton Dunes Plan, the Johnson Property, to Richard L. Ladenburg, Trustee under the Will of Junia H. Curtin. Exh. 57. The deed recites that the property is conveyed together with the right to use all ways as shown on [the Scorton Dunes Plan] for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto. Subject to and with the benefit of all easements, restrictions and encumbrances of record. Exh. 57.

As discussed above, by a deed dated April 11, 2003 and recorded in the registry at Book 16745, Page 283 on April 14, 2003, Julie C. Molloy, Trustee of trust created under the will of Junia H. Curtin, conveyed lots 32 and 33 as shown on the Scorton Dunes Plan, the Johnson Property, to Van Johnson and Catherine Johnson. Exh. 65. The property is conveyed together with the right to use all ways shown on [the Scorton Dunes Plan] for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto. Subject to and with the benefit of all easements, restrictions and encumbrances of record. Exh. 65.

Deeds which Refer to the Ladenburg Restrictions and Easements. The record contains deeds in the chains of title for other properties in the Scorton Dunes subdivision. These deeds illustrate of the nature of the conveyances and the parties intent. Deeds granted after the recording of the Ladenburg Restrictions and Easements make reference to that instrument, and the restrictions and easements it contains, to different degrees.

By a deed dated April 8, 1976 and recorded in the registry at Book 2322, Page 265 on April 12, 1976, Junia Curtin conveyed lot 5 on the 1974 Ladenburg Plan to Stephen W. Hannah. Exh. 28. The deed conveyed lot 5 subject to the restrictions and easements of record in book 2081 page 220 (the Ladenburg Restrictions and Easements). Exh. 28.

By a deed dated December 22, 1976 and recorded in the registry at Book 2446, Page 294 on December 27, 1976, Junia Curtin conveyed lot 9 on the 1974 Ladenburg Plan to Jeffrey M. Hannah. Exh. 29. The deed makes no reference to the Ladenburg Restrictions and Easements, either by name or by recording information. Exh. 29.

As stated above, the Curtin-Stewart deed, conveying lot 10 on the 1974 Ladenburg Plan (the Eudy Property), incorporates the recorded restrictions but not the easements in the Ladenburg Restrictions and Easements. Exh. 30.

By a deed dated July 31, 1978 and recorded in the registry at Book 2770, Page 208 on August 23, 1978, Junia Curtin conveyed lot 38 of the Scorton Dunes Plan to Thomas and Suzanne Zipay. Exh. 31. The deed conveyed lot 38 subject to restrictions recorded with said Deeds in[]Book 2081, Page 220 (the Ladenburg Restrictions and Easements). Exh. 31.

By a deed dated and recorded in the registry at Book 2908, Page 162 on April 30, 1979, Junia Curtin conveyed lot 3 on the 1974 Ladenburg Plan to Helen A. Ladenburg. Exh. 34. The deed conveyed lot 3 subject also to the restrictions and easements of record in Book 2081, page 220 (the Ladenburg Restrictions and Easements). Exh. 34.

By a deed dated and recorded in the registry at Book 2908, Page 163 on April 30, 1979, Junia Curtin conveyed lot 29 on the Scorton Dunes Plan to Helen A. Ladenburg. Exh. 35. The deed conveyed lot 29 subject also to restrictions recorded with said deeds in Book 2081 Page 220 (the Ladenburg Restrictions and Easements). Exh 35.

The last deed in the record granted by Junia Curtin herself was dated and recorded in the registry at Book 2981, Page 176 on September 12, 1979. Exh. 36. The deed conveyed lot 30 on the Scorton Dunes Plan to Raymond and Ruth Walsh, subject to restrictions recorded with said Deeds in Book 2081, Page 220 (the Ladenburg Restrictions and Easements). Exh. 36.

By a deed dated September 10, 1986 and recorded in the registry at Book 5348, Page 272 on October 10, 1986, Michael J. Princi and Robert J. Donahue, Co-Administrators of the Estate of Junia H. Curtin, conveyed lot 8 on the 1974 Ladenburg Plan to Jeffrey M. Hannah. Exh. 51. The deed conveyed lot 8 subject to the restrictions and easements of record in book 2091, Page 220 (the Ladenburg Restrictions and Easements). Exh. 51.

Deeds Expressly Including Easements for Beach Rights. As discussed above, the Curtin- Stewart deed grants an easement for the benefit of the Eudy Property to use the beach in front of lot 7 on the 1974 Ladenburg Plan which is the same as that which is granted in the Ladenburg Restrictions and Easements. Exh. 30.

As discussed above, by a deed dated and recorded on September 12, 1979 and recorded in the registry at Book 2981, Page 176, Junia H. Curtin conveyed lot 30 on the Scorton Dunes Plan to Raymond J. Walsh. Exh. 36. The deed conveys lot 30 [s]ubject to and with the benefit of all easements and encumbrances of record if any there be, including beach rights at the end of Beachway as shown on said plan. Exh. 36.

As discussed above, by a deed dated and recorded on January 23, 1981 in the registry at Book 3229, Page 315, Michael J. Princi and Robert J. Donahue, co-administrators of the Estate of Junia H. Curtin conveyed lots 1 and 2 on the Scorton Dunes Plan to Paul A. Kramer. Exh. 37. For each of the lots, the deed recites that the lot is conveyed [s]ubject to and with the benefit of all easements, restrictions and encumbrances of record and at law, if any there be, and that [t]here is appurtenant to said lot the right to use the ways and beaches as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways and beaches are commonly used in the Town of Sandwich. Exh. 37.

By a deed dated September 29, 1982 and recorded in the registry at Book 3588, Page 201 on October 22, 1982, Michael J. Princi and Robert J. Donahue, co-administrators of the Estate of Junia H. Curtin, conveyed lots 17 and 18 on the Scorton Dunes Plan to Ann Scott. Exh. 47. For each of the lots, the deed recites that the lot is conveyed [s]ubject to and with the benefit of all easements, restrictions and encumbrances of record and at law, if any there be, and that [t]here is appurtenant to said lot the right to use the ways and beaches as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways and beaches are commonly used in the Town of Sandwich. Exh. 47.

The Scorton Dunes subdivision consists of large houses on large lots. While not extensively developed, the area surrounding Beach Way is too densely populated to be described as rural or sparsely settled. View.

Discussion

I incorporate herein all the legal conclusions of the Summary Judgment Order. Denardo, 20 LCR at 351-354. The questions remaining open after the Summary Judgment Order have been taken under advisement as a case stated. A case stated arises when the parties agree on all the material ultimate facts, on which the rights of the parties are to be determined by law. Pequod Realty Corp. v. Jeffries, 314 Mass. 713 , 715 (1943); see Hickey v. Lepore, 21 LCR 136 , 137 (2013); see also Frati v. Jannini, 226 Mass. 430 , 431 (1917). A case stated presents all pertinent facts from which the trial judge might draw inferences. Reilly v. Local Amalgamated Transit Union, 22 Mass. App. Ct. 558 , 568 (1986). Once the parties have submitted a case stated, it is up to the trial judge to apply the law to the facts stated. Caissie v. City of Cambridge, 317 Mass. 346 , 347 (1944). Decisions, therefore, are made upon the stated facts, all inferences warranted by the facts, and the applicable law as applied to the stated facts and inferences. See Godfrey v. Mutual Finance Corp., 242 Mass. 197 , 199 (1922); Hickey, 21 LCR at 137; see also Town of Ware v. Town of Hardwick, 67 Mass. App. Ct. 325 (2006) (in a case stated review, any court before which the case may come, either in the first instance or upon review, is at liberty to draw from the facts and documents stated in the case any inferences of fact which might have been drawn therefrom at a trial, unless the parties expressly agree that no inferences shall be drawn).

The remaining questions are (a) what rights, if any, Johnson and the Sullivans [Note 2] have to use the portion of Beach Way owned by the Eudys, (b) what rights, if any, they have to park on Beach Way, and (c) whether and to what extent they have rights under the so-called Ladenburg Restrictions and Easements, including rights to use the ways and the beach.

Rights in Beach Way Abutting the Eudy Property. The parties are in dispute over what rights, if any, Johnson and the Sullivans have in the portion of Beach Way to its centerline in front of the Eudy Property, to which Eudy has title under the Derelict Fee Statute. G.L. c. 183, § 58. Johnson and the Sullivans each claim a right to cross over the Eudys' portion of Beach Way. At the time of the Curtin-Stewart deed, conveying out lot 10, Curtin held title to, among others, lot 10 on the Ladenburg Plan and lots 32, 33, and 36 on the Scorton Dunes plan, i.e., the Eudy, Johnson, and Sullivan Properties. Because she held these lots in common, any existing easements which the properties shared, including those set forth in the Ladenburg Restrictions and Easements, were extinguished through merger. Under the common-law doctrine of merger, easements are extinguished by unity of title and possession of the two estates [the dominant and the servient], in one and the same person at the same time. Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682 , 684-685 (2012), quoting Ritger v. Parker, 62 Mass. 145 , 146 (1851). Therefore, any express right that Johnson and the Sullivans claim to cross over the Eudys' portion of Beach Way would have to have been lawfully granted by Junia H. Curtin as a new easement. Curtin gave the Curtin-Stewart deed, conveying the Eudy Property, before her estate first conveyed the Johnson and Sullivan Properties. The deeds out for the Johnson and Sullivan Properties included the right to use the ways on the Scorton Dunes Plan in common with others. The Curtin estate, however, could only grant the right to use the portion of Beach Way owned by Eudys if Curtin reserved that right or burdened lot 10 in the Curtin-Stewart deed.

Johnson and the Sullivans claim that they have an easement to use the Eudys portion of Beach Way under three theories: (1) that the Eudys' property is subject to the easements of the Ladenburg Restrictions and Easements by reference in the Curtin-Stewart deed, (2) that Johnson and the Sullivans are benefited by an easement by estoppel which secures for them a right to cross over the Eudys' portion of Beach Way, and (3) that there is an implied easement which gives Johnson and the Sullivans a right to cross over the Eudys' portion of Beach Way. DeLoughrey, Denardo and the Eudys oppose Johnsons and the Sullivans claims, arguing that (1) the Curtin-Stewart deed reflects an intent by the parties to not make the Eudy Property (1) subject to any easements which benefit others, (2) Junia Curtin could not have granted the easement claimed by Johnson and the Sullivans because the reservation of that right was struck from the deed, and (3) Junia Curtin consciously chose the language used in the Curtin-Stewart deed to reflect the intent of the parties.

The Curtin-Stewart deed, from which the Eudys derive their deeded rights, is ambiguous. It contains a reference to the restrictions of the Ladenburg Restrictions and Easements, but no mention of the easements. It includes a grant for beach access that is identical to the one included in the Ladenburg Restrictions and Easements. It makes a grant for use of the ways on the 1974 Ladenburg Plan but not in common with others. Finally, it contains a paragraph that restates language from the easements in the Ladenburg Restrictions and Easements, reserving for the grantor a right to grant future easements for use of the ways, but that paragraph is crossed out. Whether this ambiguous deed expressly burdens the Eudy Property with an easement across Beach Way or reserved to Curtin the right to grant such an easement requires ascertaining Curtins intent.

The meaning of a deed, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances. Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). Where the meaning is uncertain, a deed is to be construed most strongly against the grantor. Krinsky v.
Hoffman, 326 Mass. 683 , 699 (1951). Accordingly, any ambiguity in the Curtin-Stewart deed which remains after considering the attendant circumstances and other relevant evidence should be resolved in favor of the Eudys. The presumed intent of the grantor is evidenced by the contents of the deed which the parties signed. Sheftel, 44 Mass. App. Ct. at 179. In the Curtin- Stewart deed, the language used suggests that lot 10 on the 1974 Ladenburg Plan was conveyed subject only to the restrictions of the Ladenburg Restrictions and Easements and to those easements that were expressly listed in the deed, that there were no reservation of rights by the grantor, and that there was no reservation that the use of the ways would be in common with others. The principles governing interpretation of a deed are similar to those governing contract interpretation. Estes v. DeMello, 61 Mass. App. Ct. 638 , 642 (2004). Where the clauses in an instrument are inconsistent, it is the usual rule of construction that such as are written or typewritten will control those that are printed, on the theory that the latter were left by inadvertence. Malden Knitting Mills v. Rubber Co., 301 Mass. 229 , 232 (1938); see H.J. Alperin, Summary of Basic Law § 5:71 (5th ed. 2014) (A typewritten term may be superseded by drawing a line through it and inserting a handwritten interlineation, or by inserting an inconsistent handwritten term in another part of the agreement. Thus, a handwritten term controls both a typewritten and printed term). The hand-striking of the paragraph reasonably suggests that the intent of the parties was to supersede that term of the agreement and not to make the conveyance subject to it. Construing this against the grantor, see Krinsky, 326 Mass. at 699, the meaning should be that the grantee is not burdened by the easement that was struck.

In the face of the language both included and struck out in the Curtin-Stewart deed, Johnson and the Sullivans argue that the reference to restrictions and the recording information for the Ladenburg Restrictions and Easements is intended to include those easements recorded with them. Johnson and the Sullivans suggest that Junia Curtin used the word restrictions as an abbreviation or shorthand in reference to the Ladenburg Restrictions and Easements as a whole. DeLoughrey, Denardo and the Eudys argue that Junia Curtin was a sophisticated party who was well aware of the meaning of the words in her deeds, and intentionally left out the easements in the reference to the Ladenburg Restrictions and Easements in the Curtin-Stewart deed. To help understand the grantor's intent in using this reference to the Ladenburg Restrictions and Easements, I look to other deeds issued by the common grantor for comparison. The record shows seven deeds granted by Junia Curtin between the time that the Ladenburg Restrictions and Easements were recorded and her death. Of those seven deeds, two incorporate the restrictions and easements of record of the Ladenburg Restrictions and Easements, four incorporate only the restrictions of the Ladenburg Restrictions and Easements, and one makes no reference to
either. [Note 3] Johnsons and the Sullivans arguments are not persuasive. The variety of language used in the seven deeds, granted in the span of only four years, suggests that each transaction was negotiated and that Junia Curtin was indeed aware of the particular meaning of the language contained in her deeds. Resolving this ambiguity in the intent of the grantor in favor of the grantee suggests that the exclusion of the word easement was intentional. As such, it is unlikely that it was the intent of the grantor to subject the Eudys' property to the easements of the Ladenburg Restrictions and Easements. In short, the express language of the Curtin-Stewart deed does not burden the Eudy Property with an easement or reserve the right to grant an easement to use the Eudys portion of Beach Way.

Johnson and the Sullivans next argue that they have an easement by estoppel to use the entirety of Beach Way, including the Eudys' portion. Massachusetts recognizes two forms of easement by estoppel. Estes, 61 Mass. App. Ct. at 643-644; Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481-482 (1989). The first form of easement by estoppel arises when land is conveyed according to a recorded plan. Goldstein v. Beal, 317 Mass. 750 , 755 (1945). Under this category, when a grantor conveys land located on a street according to a recorded plan on which the street is shown, the grantor or his or her successor is estopped to deny the existence of the street for the entire distance as shown in the plan. Id. In the second category, an easement by estoppel is created when land bounded by a street or land bounded on or by the side line of a street is conveyed. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Casella v. Sneierson, 325 Mass. 85 , 89-90 (1949). In this instance, the grantor or his or her successor is estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way)...embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed. Id. at 89; see Estes, 61 Mass. App. Ct. at 643.

In both categories, the rights of grantees or their successors in title against their grantors and their successors in title are at issue. Patel, 27 Mass. App. Ct. at 482. Massachusetts has not expanded the doctrine of easement by estoppel to estop a grantee from denying the existence of an easement. Id.; Waldron v. Tofino Assocs., Inc., 20 LCR 480 , 485 (2012). Accordingly, a grantor or its successor cannot claim an easement by estoppel. Id. Here, it is not the successor of the grantor Junia Curtin who is denying the existence of a right to use Beach Way; it is the successor of the grantees the Stewarts. Johnson and the Sullivans, who are successors in title to the grantor Junia Curtin, cannot claim an easement by estoppel over the Eudys portion of Beach Way.

Johnsons and the Sullivans final arguments are that they have a right to pass over the Eudys' portion of Beach Way by an implied easement. An implied easement must be found in the presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical conditions of the premises, and the knowledge which the parties had, or with which they are chargeable. Reagan v. Brissey, 446 Mass. 452 , 458 (2006). While the language of the Curtin-Stewart deed does not explicitly grant or reserve an easement for use of the ways in common, it does not foreclose the existence of an implied easement to do so. As discussed above, there are seven conveyances made by Junia Curtin between her acquisition of the majority of the properties in the development and her death. In those seven conveyances, the Eudy Property is the only one which fails to include the language in common when describing the rights to use the ways granted in each transaction. This suggests that Junia Curtins intent in each transaction was to create an easement for each property to have use of the full extent of all of the ways in the development. Further, Johnson and the Sullivans have a right to use Beach Way where it abuts the Denardo and DeLoughrey properties. Johnson and the Sullivans must pass the Eudy Property on Beach Way to be able to exercise their right to use that portion of Beach Way. Given the circumstances of these grants, it is not reasonable that Junia Curtin consciously created a situation in which her future grants of easements could include the use of all of the ways, but for one half, of one way, where it abuts one property, in a development of more than thirty lots. It is far more likely that the parties understood that all of the ways in the development would be private, but could be used freely by all property owners in the development. The record of the conveyances by Junia Curtin suggest that Johnson and the Sullivans have an implied easement to cross over the Eudys portion of Beach way.

Further, the complete record of conveyances made by Junia Curtin and her estate suggest that if there is any doubt as to the presence of an implied easement that is specific to the Eudy Property, there is an easement by common scheme which grants a right to use the ways on the Scorton Dunes Plan to all property owners in the development in common. An easement by common scheme is a form of implied easement which arises where multiple conveyances are intended to include the same common set of rights. Houghton v. Johnson, 71 Mass. App. Ct. 825 , 832-835 (2008). In such a situation, the conveyances may reference a plan of the development as evidence of the rights the grantor intended to convey, but additional evidence is required to find an easement by common scheme. Reagan, 446 Mass. at 458; Bacon v. Onset Bay Grove Assn, 241 Mass. 417 , 422 (1922); Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 628-630 (1990). Whether a set of conveyances combined with a plan creates a common scheme is a question of the presumed intent of the parties, as found in the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the properties, and the knowledge the parties had or with which they are chargeable. Reagan, 446 Mass at 458; Houghton, 71 Mass. App. Ct. at 833-834. The record shows fifteen conveyances originating from Junia Curtin or her estate, and all but the Eudy Property were conveyed with a grant to use the ways in common. [Note 4] In Houghton v. Johnson, the court relied on the presence or absence of a pattern in the set of conveyances as evidence of an implied easement by common scheme. Id. at 834-835. There is a clear pattern in the conveyances which suggests intent by the parties to create an easement for common use of the ways. In Reagan, the court used the details on a plan and the content of property advertisements as additional evidence of a common scheme. Reagan, 446 Mass. at 458. The record here does not show the manner in which the properties in the development were advertised. However, there are multiple plans in the record that show the full extent of the ways which have been built and maintained in the development. When considered together, the plans of the ways and the pattern of grants in the record strongly suggests that there is an implied easement by common scheme for use of the ways which benefits all property owners in the development.

As discussed above there is significant evidence suggesting that there is an implied easement for the use in common of the ways in the Scorton Dunes development. I find that Johnson and the Sullivans have the benefit of an implied easement to use the full extent of Beach Way, including the portion which abuts the Eudy Property.

Parking on Beach Way. The parties dispute whether Johnson and the Sullivans have a right to park on Beach Way, specifically where it widens just past the Eudy Property and before the dune. The DeLoughrey, Denardo and the Eudys argue that (1) there is no evidence that Johnson and the Sullivans have a deeded easement which allows parking on Beach Way, and
(2) the Traffic Rules of Sandwich prohibit parking on the way. Johnson and the Sullivans argue that (1) the Traffic Rules of Sandwich allow parking on Beach Way, (2) parking is permitted on the shoulder of the way, and (3) they have an implied easement for parking on the way.

DeLoughrey, Denardo, and the Eudys are correct that Johnson and the Sullivans do not have a deeded easement that expressly grants a right to park on Beach Way. However, the easement which grants Johnson and the Sullivans use of Beach Way defines that use as being for all purposes for which ways are used in the Town of Sandwich. In Sandwich, parking is allowed on some but not all roadways. Exh. 75, Town of Sandwich Traffic Rules and Orders Art. IV (Traffic Rules). Parking is restricted on a list of named roads and in rural or sparsely settled districts. Id. at §§ 1(d), 2. Beach Way is not listed in the Traffic Rules as a way on which parking is expressly prohibited. The right to park on Beach Way therefore rests on whether the area around the way is rural or sparsely settled. Id. The parties dispute the density of the area surrounding Beach Way. On the view, I observed that the Scorton Dunes subdivision is a neighborhood of large residential lots with single-family homes on them. While not necessarily densely developed, the neighborhood is not rural or sparsely settled either. As the area around Beach Way is not rural or sparsely settled, parking is permitted on Beach Way within the meaning of the Traffic Rules. I note that all other rules for use of ways in Sandwich, including the Traffic Rules, also apply to Beach Way, and, as such, Beach Way may not be obstructed by parties seeking to exercise their right to park.

Rights in the Ladenburg Restrictions and Easements. The parties dispute whether and to what extent Johnson and the Sullivans have rights under the Ladenburg Restrictions and Easements. As discussed in the Summary Judgment Order and this Decision, Johnson and the Sullivans have an implied easement to use the Eudy portion of Beach Way and an express easement to use the remainder of the ways shown on the Scorton Dunes Plan, including the remainder of Beach Way. The issue is whether they have rights under the Ladenburg Restrictions and Easements to use the beach. DeLoughrey, Denardo, and the Eudys argue that (1) the Denardo, DeLoughrey, and Eudy properties were not conveyed subject to the easements of the Ladenburg Restrictions and Easements, and (2) the Ladenburg Restrictions and Easements do not create a common scheme. Johnson and the Sullivans argue that (1) the DeLoughrey, Denardo, and the Eudy Properties are subject to the easements of the Ladenburg Restrictions and Easements by an implied easement, and (2) the Ladenburg Restrictions and Easements create a common scheme.

DeLoughrey, Denardo, and the Eudys are correct that the properties subject to this litigation do not appear to have been conveyed subject to the easements of the Ladenburg Restrictions and Easements. The Denardo, DeLoughrey, Sullivan, and Johnson deeds do not refer to the Ladenburg Restrictions and Easements and the Eudy deed makes reference only to the restrictions of the Ladenburg Restrictions and Easements. However, it is arguable that those properties have the benefit of or are burdened by the easements of the Ladenburg Restrictions and Easements or their equivalent by implication or as a part of a common scheme.

As discussed above, when no easement appears in a deed an implied easement can arise out of the presumed intent of the parties to create an easement. See Reagan, 446 Mass. at 458. Johnson and the Sullivans argue that the easements of the Ladenburg Restrictions and Easements should be enforced by implication, because despite the technical merger of the easements, it was the intent of Richard Ladenburg and Junia Curtin to benefit all properties in the development by these easements. This argument is incomplete. While it may or may not have been the original intent of those individuals to create the easements in question, the understanding of the grantees in each transaction also factors into the calculus when determining the presumed intent of the parties. See Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 104 (1933) (evidence tend[s] to show an intent of the parties at the time of the conveyance that such an easement be then created.). To find the implied easement argued by Johnson and the Sullivans, I would have to find that at the time of the conveyance, both parties intended to recreate the extinguished easements of the Ladenburg Restrictions and Easements. The deeds granted by Junia Curtin or her estate to Johnsons and the Sullivans' predecessors in title make no reference to the easements of the Ladenburg Restrictions and Easements but specifically include a grant for use of the ways in common. The record does not include other evidence that characterizes the intent of the parties at the time those properties were conveyed by Junia Curtin. Without more, it is not possible to presume that the buyers intended to create any easement other than those listed in the deeds.

Johnson and the Sullivans next argue that if there is no implied easement specific to the parties in this case, then there is a common scheme easement which applies the easements of Ladenburg Restrictions and Easements to all of the properties in the development. As discussed above, an easement by common scheme is a form of implied easement which arises where multiple conveyances are intended to include the same common set of rights. Houghton, 71 Mass. App. Ct. at 832-835. In such a situation, the conveyances may reference a plan of the development as evidence of the rights the grantor intended to convey, but additional evidence is required to find an easement by common scheme. Reagan, 446 Mass. at 458; Bacon, 241 Mass. at 422; Boudreau, 29 Mass. App. Ct. at 628-630. Whether a set of conveyances combined with a plan creates a common scheme is a question of the presumed intent of the parties, as found in the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the properties, and the knowledge the parties had or with which they are chargeable. Reagan, 446 Mass at 458; Houghton, 71 Mass. App. Ct. at 833-834.

The record shows fifteen deeds granted by Junia Curtin or by her estate that may be used as evidence of the presence or absence of intent to create an implied easement by common scheme. [Note 5] In those fifteen conveyances, four lots are conveyed subject to the restrictions of the Ladenburg Restrictions and Easements and only three lots are conveyed subject to both the restrictions and the easements of the Ladenburg Restrictions and Easements. [Note 6] Johnson and the Sullivans argue that there are many conveyances which grant the properties subject to any easements, restrictions, and encumbrances of record and that language shows intent to include the easements of the Ladenburg Restrictions and Easements. [Note 7] Examination of the language of these deeds casts doubt on that assertion. In this set of conveyances, the deeds reflect a variety of easements for use of and access to the beach. Four of the deeds in this set make express grants for access to the beach. The Curtin-Stewart deed refers to the beach in front of what is now the Denardo property, another deed references the beach at the end of Beach Way, and still two more reference the beaches generally, giving little indication of what area they are specifically granting a right to. [Note 8] These grants of beach rights would not be necessary if the intent of the parties was to make the conveyances subject to a common scheme defined by the Ladenburg Restrictions and Easements, which granted beach rights. The frequent grant of an easement for use of the ways is still more evidence that the grantor did not believe the properties were being conveyed subject to the easements of the Ladenburg Restrictions and Easements. All fifteen of the properties considered above include in their deed from Junia Curtin an express grant for use of the ways. The easements of the Ladenburg Restrictions and Easements include the same grant. Had Junia Curtin believed that she was conveying the properties subject to the recorded easements of the Ladenburg Restrictions and Easements, such a grant would have been unnecessary.

In Houghton, the Appeals Court affirmed the trial judges finding that the lack of a discernible pattern in the contents of the deeds in a subdivision was evidence that there was no common scheme. Houghton, 71 Mass. App. Ct. 834 -835. The same is true for this subdivision. As explained above, the record shows an inconsistent pattern of grants in the conveyances made by Junia Curtin.

In Reagan, the SJC relied on the presence of parks in the referenced plans and the manner in which the properties were advertised for sale to find that there was a common scheme easement for use of the parks. Reagan, 446 Mass at 458. The trial judge in Houghton relied on the absence of those features and the lack of a discernible pattern in the deeds to support his finding of no common scheme. Houghton, 71 Mass. App. Ct. at 834-835. The present case is very similar to Houghton. There is no discernible pattern of the granting of beach rights in the deeds given by Junia Curtin, the referenced plans do not evidence a common scheme for beach rights, and the record contains no evidence of the way any property in the development was advertised for sale.

When Richard Ladenburg recorded the Ladenburg Restrictions and Easements, his intent may have been to create a common scheme, but this desire was never realized as the properties were sold. The contents of the deeds granted by Junia Curtin are not illustrative of intent to create a common scheme for the development. More likely, each transaction was negotiated independently, and this explains the variation in the easements granted to each property.

The record strongly suggests that it was not the intent of Junia Curtin to convey each of her properties subject to the easements of the Ladenburg Restrictions and Easements. As it is not clear that it was the intent of the parties, I cannot find an implied easement or an easement by common scheme to grant the owners of lots in the Scorton Dunes subdivision the right to use the beach. Accordingly, Johnson and the Sullivans derive no rights from the easements of the Ladenburg Restrictions and Easements to use the beach.

Conclusion

For the foregoing reasons and the reasons set forth in the Summary Judgment Order, judgment shall enter declaring that Sullivan and the Johnsons have the right to use the ways on the Scorton Dunes Plan, including Beach Way for its entire length to Cape Cod Bay, in common with others for all purposes for which ways are commonly used in the Town of Sandwich, that Johnson and the Sullivans are allowed to park on Beach Way consistent with the Traffic Rules, and that Johnson and the Sullivans have no rights derived from the easements of the Ladenburg Restrictions and Easements and have no rights to use the beach in front of the Denardo or DeLoughrey Properties. Judgment shall also enter on all the other claims and parties in this case that have been previously adjudicated.

The defaults of three partiesChandler Bosworth, Donna Chiesi-Hoyt, and Melvin Hoythave been entered. The plaintiffs are instructed to submit a request for entry of default judgment and an affidavit attesting that these defendants are not entitled to the protections of the Servicemembers Civil Relief Act, and all parties are instructed to submit proposed forms of judgment, within 14 days of the date of this Decision. After filing of the requests for entry of default judgment and proposed forms of judgment, final judgment shall enter accordingly.

exhibit 1

FOOTNOTES

[Note 1] These lots are also shown on the revised Scorton Dunes Plan attached to this Decision.

[Note 2] Kirks rights derive from the rights of the Sullivans, and Kirk will be bound the adjudication of the Sullivans rights in this action.

[Note 3] Deeds from Junia Curtin to Stephen Hannah and Helen Ladenburg incorporate the restrictions and the easements. See Exhs. 28 & 34. Deeds from Junia Curtin to the Stewarts, the Zipays, Helen Ladenburg, and the Walshes incorporate only the restrictions. See Exhs. 30, 31, 35, 36. The deed from Junia Curtin to Jeffrey Hanna in 1978 makes no reference to the restrictions or the easements. See Exh. 29.